So Now Torture is Okay?

“I believe strongly in transparency and accountability…
the United States is a nation of laws.”
– President Barack Obama, April 16, 2009

I know that many of the people who voted for me for Congress in 2008 also voted for Barack Obama. I understood and still understand the reasoning. And I have been only too happy to give President Obama credit for his good acts, such as when he ordered the closure of Guantanamo Bay prison in the first week of his Presidency.

Unfortunately, there has been far too much on the other side of the ledger in the weeks that followed. We found out soon after the order to close Guantanamo that the Obama Administration is working diligently to deny any legal rights to prisoners in other U.S. prisons abroad, such as Bagram Air Force Base in Afghanistan. Attorney General Eric Holder has echoed the national security and state secrets arguments used by the Bush Administration in trying to squelch lawsuits and investigations into illegal surveillance and the rendition of terrorist suspects to other countries.

And last week, President Obama took another deeply disturbing step.

In response to an ACLU lawsuit, the President released four previously classified “legal” memos written for the Bush Administration to justify torture, and he did so over the strenuous objections of current and past CIA directors. Excellent transparency. So far so good.

But then… President Obama made clear he would launch no investigation, and that no one who participated in these grossly illegal and immoral activities would be prosecuted by his Administration. Indeed, he went on to say that his Administration would actively defend any suspected torturers subjected to lawsuits.

In other words, transparency with no accountability whatsoever.

The memos themselves are sickening – they are detailed instructions on how to commit torture. Stripping people naked, slamming them into walls, depriving them of sleep (for up to 11 days), the now infamous “waterboarding” (which was used on one captive 183 times – in a single month). They describe activity that cannot possibly be justified by any memo.

And yet President Obama defended those guilty of violating U.S. and international laws against torture by saying they were relying “in good faith” upon legal advice received from their superiors. In other words, they were just following orders.

As more than a few commentators have pointed out in the days that followed, “just following orders” was the defense used by war criminals after WWII to justify Nazi atrocities, including torture. And it was a rationale destroyed at the Nuremburg trials that followed – or so we had hoped.

In making his pronouncement to shut the door on inquiries and prosecution (which his Chief of Staff Rahm Emanuel was quick to add would include those who wrote and approved the memos as well, although now it’s being suggested it will be up to Attorney General Holder to make that decision), President Obama violated the very essence of his campaign promises (if such a thing even matters anymore), which were to bring transparency and accountability back to government.

Even more importantly, President Obama – a Constitutional lawyer, no less – also violated his oath of office to protect and defend the U.S. Constitution (does that matter?), since the Constitution makes it pretty clear, in Article II, Section 3, that the President has an absolute obligation to “take Care that the Laws be faithfully executed.” He does not have the discretion to let lawbreakers go uninvestigated and unprosecuted just because it might be politically expedient to do so.

And perhaps most importantly of all, he is encouraging the very behavior he claims to oppose. For what is the lesson when one commits high crimes in government, the evidence is produced, and yet no consequences follow? To quote the great Supreme Court Justice Louis Brandeis, from his opinion in Olmstead v. United States:

“Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen…. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

All of this is terrible enough. But for those of us who appreciate having a President who can actually string words, sentences and thoughts together when speaking, it’s also worth noting that President Obama is now using his considerable rhetorical gifts against us – including many of those who voted for him – and the policies many of us hoped we would gain.

For what does it mean to claim we are “a nation of laws,” at the same time he refuses to go after those who commit some of the worst crimes imaginable? How can he claim to “believe strongly” in accountability, yet refuse to apply it when it matters most?

And check out the words with which Mr. Obama ended his statement:

“This is a time for reflection, not retribution. . . . nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.”

So in Obama-speak, at least on the issue of torture, justice for crimes committed equals “retribution.”

Investigating and prosecuting horrific crimes for which there is ample evidence is now a waste of time and energy, nothing more than “laying blame for the past.”

And those of us who still insist on equal justice under the law, no matter what station in life (or government) the lawbreaker may hold, we are now “the forces that divide us,” and we must be “resist[ed].”

Pardon me for having to ask the question, but apart from the fact that it was more artfully done, what exactly is the difference between what President Obama just said, and the Bush Administration lackeys who attacked critics of their policies as unpatriotic (or worse)?

Thanks a lot, President Obama. And pardon me again if I choose to disagree with you on what constitutes our core values. I trust I’m not the only American who believes equal justice for all is about as core as it gets if our “nation of laws” is to mean anything.

It may not end here, though. A lot of people are pretty damned upset, as we should all be, and even some members of Congress are saying that investigations must be held. A lot will depend on how much pressure they now feel.

I encourage you to go to the links below, and sign the petitions urging Congress to investigate torture in the Bush Administration, and to impeach Jay Bybee, the federal judge who was one of the main authors of the torture memos. And please forward this email to your friends so they can sign them as well. Signing online petitions may be the least any of us can do to defend our nation of laws, but it’s a start – and it’s more than the President is willing to do. So far, anyway.

To sign the ACLU open letter to Attorney General Holder calling for a special prosecutor and full investigation, click here.

To sign the Democrats.Com (“The Aggressive Progressives”) petition to Congress calling for a full investigation and other critical actions, click here.

To sign the Progressive Democrats of America petition to Congress calling for the impeachment of Judge Bybee, click here.